Judge: Stephen P. Pfahler, Case: 20STCV19456, Date: 2023-01-27 Tentative Ruling

Case Number: 20STCV19456    Hearing Date: January 27, 2023    Dept: F49

Dept. F-49

Date: 1-27-23 c/f 12-14-22

Case #20STCV19456

Trial Date: Not Set

WRIT OF ATTACHMENT

MOVING PARTY: Plaintiff, Pablo Padron

RESPONDING PARTY: Hugo Osoy

RELIEF REQUESTED

Writ of Attachment

SUMMARY OF ACTION

Plaintiff Pablo Padron alleges performing construction remodeling work at 13755 Merchant Ave., Sylmar, when he fell off a ladder and sustained injuries. Plaintiff was working at the direction of defendant Hugo Osoy, and alleges Osoy failed to maintain a workers’ compensation policy at the time of the incident.

On May 21, 2020, Plaintiff filed a complaint for breach of statutory obligation, negligence, and premises liability. Defendants answered the complaint on August 19, 2020. On December 30, 2022, the action was reassigned to Department 49.

RULING: Denied.          

Plaintiff Pablo Padron moves for a writ of attachment for $26,610,829.39. The amount arises from past and future medical expenses incurred as a result of the fall, as well as a claim for $12,000,000 in pain and suffering damages. The application begins with an extensive description of the injuries and medical expenses, plus sought after attorney fees. The substance of the claim is based on the first cause of action for breach of statutory obligation, whereby Plaintiff alleges the violation of Labor Code section 3607 entitles Plaintiff to a writ of attachment. Defendant in opposition challenges the probable validity of the writ in that the claim is barred by the workers’ compensation insurance exclusivity rule. Plaintiff in reply maintains the workers’ compensation exclusivity rule is not applicable. Even if the workers’ compensation rule applies, however, Plaintiff maintains the right to bring the action under the employer negligence rule. Plaintiff also notes the lack of any challenge to the amount requested or any claim of exemption, and adds in argument regarding the provision of a “faulty ladder,” thereby contributing to the fall.

Upon the transfer of the action from the Personal Injury Hub Court, all dates were vacated, and the motion reset. The court therefore considered both the amended opposition and reply/sur-reply (amended reply) as well rather than engage in a determination of the difference between a vacated and reset hearing date versus a continued hearing date with no instructions barring further briefing under statutory guidelines. The objection is overruled.

Code Civil Procedure Section 483.010 subdivision (a) states: “Except as otherwise provided by statute, an attachment may be issued … where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.” The court may issue a right to attach order if it finds all of the following:

(1)   The claim the attachment is based on is a claim in which an attachment may be issued.

(2)   Plaintiff has established the probable validity of its claim.

(3)   The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

(4)   The amount to be secured by the attachment is greater than zero.

(Code Civ. Proc., § 484.090, subd. (a).)

Plaintiff presents the unchallenged statutory basis for the writ. “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.” (Lab. Code, § 3706.) “The injured employee or his dependents may in such action attach the property of the employer, at any time upon or after the institution of such action, in an amount fixed by the court, to secure the payment of any judgment which is ultimately obtained. The provisions of the Code of Civil Procedure, not inconsistent with this division, shall govern the issuance of, and proceedings upon such attachment.” (Lab. Code, § 3707.)

The parties agree with the identification of defendant Osoy as both homeowner 13755 Merchant Ave., Sylmar, and employer at all relevant times. The parties however dispute the probability of success on the merits of the writ based on application of the workers’ compensation exclusivity statute as interpreted under the applicable statutes, and the definition of employment in the subject action.

“In such action it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was guilty of contributory negligence, or assumed the risk of the hazard complained of, or that the injury was caused by the negligence of a fellow servant. No contract or regulation shall restore to the employer any of the foregoing defenses. [¶] This section shall not apply to any employer of an employee, as defined in subdivision (d) of Section 3351, with respect to such employee, but shall apply to employers of employees described in subdivision (b) of Section 3715, with respect to such employees.” (Lab. Code, § 3708.)

The relevant statutory section provides numerous criteria definitions of an employee. The court addresses the specific section identified in Labor Code Section 3708. “‘Employee’ means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes: … (d) Except as provided in paragraph (8) of subdivision (a) of Section 3352, any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.” (Lab. Code, § 3351.) “‘Employee,’ excludes the following: … (8) A person described in subdivision (d) of Section 3351 whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury … comes within either of the following descriptions: (A) The employment was, or was contracted to be, for less than 52 hours. (B) The employment was, or was contracted to be, for wages of not more than one hundred dollars ($100).” (Lab. Code, § 3352, subd. (a).)

“Notwithstanding this section or any other provision of this chapter except Section 3708, any person described in subdivision (d) of Section 3351 who is … (3) engaged in casual employment where the work contemplated is to be completed in not less than 10 working days, without regard to the number of persons employed, and where the total labor cost of the work is not less than one hundred dollars ($100) (which amount shall not include charges other than for personal services), shall be entitled … to proceed[] against his or her employer by civil action in the courts as provided in Section 3706. …” (Lab. Code, § 3715, subdivision (b).)

Plaintiff depends on the presumption of negligence under Labor Code section 3708, which requires a finding of application of Labor Code sections 3351 and 3715, subdivision (b), and no employee exemption under Labor Code section 3552, subdivision (a)(8). Plaintiff additionally adds that he was hired for work requiring a contractors license, but was never licensed, thereby also contributing to the finding of employee rather than independent contractor status. “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required … or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.” (Lab. Code, § 2750.5.)

Defendant concedes to the description of Plaintiff as an employee at all relevant times under Labor Code section 2750.5 as an unlicensed contractor performing work requiring a contractors license, but effectively denies the application of Labor Code section 3708, and therefore the presumption of negligence sufficient to proceed with the action rather than exclusively proceeding via a workers’ compensation claim. Defendant relies on the language of Labor Code section 3352 subdivision (a)(8) regarding the 52-hour work minimum and greater than $100 payment for the work. Plaintiff admits in deposition that the job required an estimated 10-12 days of work for eight hours a day, as a solo job, with an agreed upon price of $4,000, which exceeds the $100 minimum. [Declaration of Arash Zabetian, Ex. 13, Deposition of Pablo Padron, 64:1-16, 130:10-12.] Defendant also disputes the work performed was more than simply maintenance and use of the home, but extensive remodeling work, due to the installation of skylights.

Defendant additionally raises argument regarding the potential provision of workers’ compensation insurance via the homeowner insurance policy for the subject property. Plaintiff in reply addresses the language of the policy regarding residency requirements, as well as new legal argument, which is not at issue in the subject writ. The court declines to consider the argument. The writ involves a showing of a probability of success on the non-workers compensation excluded portion of the case only. To consider new argument submitted in reply improperly deprives Defendant of the opportunity to reply and short circuits the scheduled summary judgment motion on the subject matter. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-764.)

For purposes of this motion only, the court finds the “employee” exclusion definition applicable to Plaintiff under Labor Code sections 3352, subdivision (a)(8) and 3715, subdivision (b). Nothing in the plain language of Labor Code section 3715, subdivision (b)(3) requires a residency in order to establish the exclusion as argued in the reply. The court also stops short of any finding that the exclusion from the presumption of negligence depended on by Plaintiff in this writ establishes Defendant’s argument for workers’ compensation exclusivity. This issue is not squarely presented in the writ, and the court therefore declines to engage in any further findings beyond the probable validity of the claim for purposes of establishing a prejudgment writ of over 26 million dollars based on a presumption of negligence and therefore the right to seek $26,000,000 in a prejudgment attachment.

As for the probability of success showing, the court find insufficient evidence of presumed negligence, and therefore declines to make a prejudgment finding of a probable validity of a separate and independent recovery of 26 million dollars. (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal. App. 3d 1110, 1118-1120.) Even assuming a successful showing of the presumption, Plaintiff fails to establish how establishment of said presumption of negligence equates to a probable recovery of $26 million, of which 12 million alone arises from pain and suffering damages. Nothing in the application establishes how pain and suffering constitutes a readily identified sum, as addressed in the writ of attachment standard. (See Code Civ. Proc., § 483.010, subd. (a).) The application for writ of attachment is DENIED.

Motion to Compel Further Deposition Responses set for January 31, 2023.

Plaintiff to provide notice.